Settlement in Divorce

On October 7, 2015 news broke that the richest man in Illinois, hedge fund manager Ken Griffin, came to a settlement in his divorce from Anne Dias Griffin. The two had entered into a prenuptial agreement (also referred to as a “prenup” or “premarital agreement”) prior to their marriage in 2003. They have three young children together.

They were set to have a 7 day trial over the prenup and then a separate trial over child support and yet another trial over custody and visitation. Ms. Griffin reportedly wanted to challenge the validity of the prenup, have sole custody of the children with only reasonable visitation to Mr. Griffin, and move the children to New York. However, after withdrawing her request to move to New York and recognizing the validity of the prenup, the parties were able to come to a settlement the day that the trial was set to start. The case had been going on for 14 months before settlement was reached and their divorce was finalized.

Most people outside the legal world, when they hear the term “settlement,” mistakenly believe that this is equivalent to or means the same thing as mediation. This is incorrect, however, because mediation and settlement are two distinctly different things. Parties can settle a case without attending mediation. They can reach settlement on some issues in their case and disagree on other issues, or they can disagree on all issues altogether. Mediation is only necessary where there are disagreements. If parties are candidates for mediation, they can come to settlement on some or all issues in their case through mediation rather than through litigation.

When talking settlement, we are typically referring to a meeting of the parties and their attorneys. There is no neutral third party like there is in mediation. The parties can be in separate rooms with all communication going through the attorneys only, or the parties and attorneys can sit down altogether in one room to work things out. If the parties agree on all the issues in their case, the attorneys can draw up what is called a “Marital Settlement Agreement” (an “MSA”). This removes the need to ever argue anything before a judge or mediator. One party or the other may have drafted a proposed MSA prior to the meeting, which can be agreed to in whole, or edited to reflect the other party’s wishes.

Once an MSA is agreed to and signed by both parties, the agreement gets filed with the court and becomes a court order because it is incorporated into the final judgment for divorce. Alternatively, the parties may be able to settle at least some issues in their case, then minimizing the issues that need to be presented to the court or mediator. Settlement between parties is ideal because it removes the risk of having a third party who can never truly understand everything about your relationship making legally binding decisions that you have to adhere to. It is also highly beneficial for high profile divorces, where the parties wish to keep their private dealings outside of the public eye.

It is important to have an attorney drafting your MSA, so that it conforms to state laws and contains all the necessary provisions. It must contain very specific language in case any disagreements arise between the parties down the road about any of the terms. It is not recommended for only one party to have an attorney. Even in the most amicable divorce, you may think that your spouse has your best interests at heart, but you have no way to ensure that your rights are properly protected unless you have your own attorney to advise you. You may not fully understand the implications of what you are signing, which can lead to consequences that you never expected down the road, and can often end up in lengthy and costly litigation.

It is important to have an experienced attorney on your side during a divorce. Even in the most friendly and amicable divorces, a comprehensive understanding of the applicable laws is necessary in order to make sure that your rights are protected. Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding settling a divorce.Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.